Circling back to the obvious: the convergence of traditional and reverse discrimination in Title VII proof.

TABLE OF CONTENTS INTRODUCTION I. TITLE VII DISPARATE TREATMENT CLAIMS BY WHITES AND MALES A. The Rule: Title VII Prohibits Race Discrimination B. The Exception: Racial or Gender Preferences Are Permissible Under Valid Affirmative Action Plans II. PROVING AN INDIVIDUAL CASE OF REVERSE DISCRIMINATION A. The Parameters of the Debate B. What Are Background Circumstances? C. Is an Affirmative Action Plan a Sufficient Background Circumstance? III. Is REQUIRING "BACKGROUND CIRCUMSTANCES" ITSELF REVERSE DISCRIMINATION? A. The Growing Rejection of the Test B. Coming to Grips with the Problem: Different Perceptions of Reality C. Coming to Grips with the Problem: Reality Itself IV. Is "BACKGROUND CIRCUMSTANCES" CONSTITUTIONAL? V. ELIMINATING FORMAL PROOF STRUCTURES FOR BOTH TRADITIONAL AND REVERSE DISCRIMINATION CASES VI. THE EFFECTS OF ADOPTING A "SUFFICIENT EVIDENCE" APPROACH CONCLUSION INTRODUCTION

In a recent article in the Harvard Law Review, Professor Richard Primus suggests that the next great equal protection battle on the race front will be fought over whether limiting Title VII's disparate impact theory to racial minorities is constitutional. (1) Although I have responded in the Northwestern University Law Review that the constitutional question can--and under normal principles of statutory interpretation and constitutional adjudication should--be avoided by the counterintuitive expedient of extending the disparate impact theory to whites, (2) this Article takes issue with Professor Primus on another ground. That is, the next great equal protection battle on the race front may be fought not over disparate impact but instead over disparate treatment discrimination: whether Title VII's foundational proof structure for individual disparate treatment cases (3)--the "McDonnell Douglas" prescription--is constitutional. (4)

The McDonnell Douglas approach, which has been refined by a dozen Supreme Court cases and invoked in literally tens of thousands of lower court decisions in the thirty years since its announcement, was called into question by the Supreme Court's 2003 decision in Desert Palace, Inc. v. Costa. (5) This Article considers the implications of Desert Palace for the McDonnell Douglas proof scheme, but adds an unusual perspective--the rising dissatisfaction in the lower courts with the application of formalized proof structures to reverse discrimination claims.

My central message is that the increasing judicial concern about the constitutionality of developing race-specific proof structures can be avoided by treating claims of discrimination by whites the same as claims by African Americans, and by freeing both from the McDonnell Douglas framework. Plaintiffs of any race should need merely to present evidence from which a reasonable jury could find race discrimination. This circling back to the obvious will permit severing the thick encrustation of precedents in both the traditional and reverse discrimination areas that comprise the Gordian knot of Title VII law. In addition, this is a kind of harmonic convergence of the increasing dissatisfaction with both McDonnell Douglas in traditional discrimination cases, and with the law's approach to reverse discrimination. I caution, however, that a return to the obvious will require developing new methods of proof if the new regime is to permit meaningful attacks on the endemic problem of discrimination.

The core question for reverse discrimination arises from the understandable reluctance of courts to infer racial discrimination against whites in circumstances in which they will readily infer racial discrimination against African Americans and other racial minorities. Indeed, lurking under the question of proof structures is the question, under the retrospective lens of present equal protection doctrine, of whether Title VII is constitutional, or at least how its constitutionality may be justified.

The last great equal protection battle recently ended with the defenders of affirmative action in education narrowly preserving the ability, under the Equal Protection Clause and Title VI of the Civil Rights Act of 1964, to accord limited racial preferences in the pursuit of diversity. As anyone not on a desert island knows, the Supreme Court, in 5-4 votes in Grutter v. Bollinger (6) and Gratz v. Bollinger, (7) struck down the University of Michigan's admissions plan for the undergraduate program, (8) but upheld Michigan Law School's more individualized program. (9) Although the nation's colleges must scurry to revise their admissions policies to conform to the new dispensation, (10) Grutter marked the first majority in favor of affirmative action in decades. Yet, however important, Grutter is a very circumscribed opinion, and affirmative action remains constitutionally suspect in most areas other than education.

Lost in the massive national debate that crystallized in Grutter over the constitutionality of racial preferences in higher education is the parallel question of "reverse discrimination" in employment under Title VII. That topic is of increasing practical importance. Last year, the Eleventh Circuit affirmed a judgment of $17,000,000 to seven white librarians in their Title VII suit against the Atlanta Fulton Public Library System, (11) and EEOC filings increasingly challenge reverse discrimination (12) as opposed to traditional discrimination. (13) Like the dispute over affirmative action/reverse discrimination for public entities under the Constitution, the question of reverse discrimination/affirmative action under Title VII has generated enormous controversy but has evolved very differently. Simply summarized, although Title VII in theory bars race discrimination against any race, it allows affirmative action racial preferences to a greater extent than does the Equal Protection Clause. (14)

This results from the confluence of two phenomena. The first, and better known, is the Supreme Court's more permissive test for the validity of affirmative action plans under Title VII than under the Equal Protection Clause. Thus, although showing that an employer consciously uses race or gender to advance the employment opportunities of minorities and women may establish a prima facie case of disparate treatment discrimination, a valid affirmative action plan is a legitimate reason for the use of race or sex in employment decisions, and the standards for validity are relatively relaxed. (15) If the plan is valid, decisions taken pursuant to it are not discriminatory within the meaning of the statute. Accordingly, a reverse discrimination plaintiff making a systemic attack must prove both that she was disadvantaged by an affirmative action plan and that the plan is invalid. (16)

The second phenomenon is less well recognized. In the past, lower courts had been reluctant to recognize discrete cases of racial preferences, i.e., individual cases where the employer did not seek to shield its action behind an affirmative action plan. A typical formulation was that a reverse discrimination plaintiff must have had "direct evidence" of discrimination against whites or, for a plaintiff forced to use circumstantial evidence, must have shown as part of her prima facie case "background circumstances" demonstrating that the employer was the "unusual employer" who so discriminates. (17) Whether more demanding requirements for proving actionable reverse discrimination under Title VII as opposed to the Equal Protection Clause are a cause for celebration or consternation depends on the observer, but that courts were imposing these requirements was both clear and yet largely unnoticed.

More recently, however, there has been a shift toward making reverse discrimination attacks under the statute easier to mount. This has occurred on two fronts. First, the intersection of the Supreme Court's approval of voluntary affirmative action plans with individual cases claiming reverse discrimination has become more complicated. In "first generation" cases, the plaintiff challenged a particular decision and the employer justified its action by reliance on an affirmative action plan. The litigation then proceeded on familiar grounds to determine if the plan was valid under criteria the Court had announced. In current second generation cases, however, typically neither side invokes the affirmative action plan. (18) Rather, the plaintiff claims the plan is a sufficient "background circumstance"; by not claiming that she was denied an opportunity pursuant to the plan, plaintiff avoids having also to prove the plan was invalid. To prove racial discrimination in the first place, however, she argues that the existence of a plan (or, less concretely, a commitment to "diversity" or "equal employment opportunity") is a "background circumstance" permitting her to establish more readily her prima facie case of reverse discrimination. To what extent such a showing will be permitted needs to be addressed, especially in light of the possible concomitant disincentive for affirmative action plans. More surprising than plaintiffs avoiding challenges to affirmative action plans is that defendants, for reasons we will explore, rarely seek shelter behind such plans. (19) Rather, they simply deny any racial preference in the first place.

The second front concerns the increasingly common challenges by reverse discrimination plaintiffs to the requirement that, absent direct evidence, they must show "background circumstances" that the employer discriminates against whites. They claim both that the requirement is incoherent and that the requirement itself constitutes reverse discrimination. That is, plaintiffs contend that they are being disadvantaged compared to minorities: whereas a minority bringing a "traditional" discrimination case makes out one element of her prima facie case by showing merely that she is a minority, a white plaintiff must satisfy the "additional" requirement of "background circumstances."